TMI Blog2022 (3) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee started claiming exemption under section 11 of the Act. The assessing officer denied the exemption under section 11 of the Act primarily for the reason that the activities of the assessee included facility of permit room, which, according to him, cannot be considered to be for charitable purpose. Therefore, applying the Proviso to section 2(15), the assessing officer held that the activity of providing bar room cannot be considered to be objects of general public utility. Tribunal in Breach Candy Swimming Bath Trust v/s ITO[ 1986 (3) TMI 106 - ITAT BOMBAY-A] concluded that except the income derived from the activity of providing facilities for playing Cards at stake, all other income from Swimming Pool and other sport activities, Bar and Restaurants, etc., will be from the activities of carrying out the object of general public utility, hence, entitled to exemption under section 11 Thus the assessee trust is a charitable trust within the meaning of section 2(15) of the Income-tax Act, 1961 - The income derived from the activity of providing facilities for providing bar facility, etc. except the income derived from the activity of providing facilities for playing card ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T. Act. 5. When appealed against, the Ld.CIT(A) upheld the order of the assessing officer by holding that the activities of the assessee have been found to be hit by the newly inserted Proviso to section 2(15) of the Act. 6. Further aggrieved, the assessee is in appeal before the Tribunal. 7. The learned AR of the assessee submitted that on a similar issue in the case of MIG Cricket Club, the Hon ble Tribunal, while deciding the case for A.Y. 2009-10 in ITA No.602/Mum/2012 have observed that observed that the activity of banquet hall hiring, restaurants and permit room are in the nature of carrying on trade, commerce or business for consideration etc. which are hit by proviso to Sec.2(15) of the Act. The Ld.AR further contended that its registration u/s 12A of the Act has been restored and since it was granted exemption u/s 11 of the Act by the order of Hon'ble ITAT in their own case for A.Ys. 2000-01 2001-02, such exemption u/s 11 of the Act should be granted to it for the year under consideration as well. Further, for the A.Yrs, 2000-01 2001-02, the exemption u/s 11 was granted to it as in those years the proviso to sec.2(15) as is applicable to the year under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s object is charitable purpose. 9. We have considered rival submissions and perused materials on record. The learned assessing officer denied the claim of exemption to the assessee on the ground that the exemption granted by the DIT(E) was subsequently withdrawn by him. In that background, the assessing officer proceeded to examine whether the assessee was a charitable trust or a mutual concern and found that the assessee was providing recreational activities, banquet hall hiring, restaurants and permit room, which are in the nature of carrying on trade, commerce or business for consideration etc. which are hit by proviso to Sec.2(15) of the Act. Therefore, the assessing officer, applying proviso to section 2(15), held the assessee trust as a mutual concern. The Ld.AR of the assessee before us submitted that the registration was eventually restored by the DIT(E) as per the direction of the ITAT, as per order dated 27.03.2017 (paper book page 65). The charitable nature of the assessee can be appreciated from the fact that not only it is registered with Charity Commissioner, Mumbai, but was also granted registration as a Charitable Institution under section 12A of the Act. The den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act immediately after its creation in the year 12A of the Act, the assessee started claiming exemption under section 11 of the Act. The assessing officer denied the exemption under section 11 of the Act primarily for the reason that the activities of the assessee included facility of permit room, which, according to him, cannot be considered to be for charitable purpose. Therefore, applying the Proviso to section 2(15), the assessing officer held that the activity of providing bar room cannot be considered to be objects of general public utility. We find that the Special Bench of the Tribunal in Breach Candy Swimming Bath Trust v/s ITO, concluded that except the income derived from the activity of providing facilities for playing Cards at stake, all other income from Swimming Pool and other sport activities, Bar and Restaurants, etc., will be from the activities of carrying out the object of general public utility, hence, entitled to exemption under section 11 of the Act. (emphasis supplied by us) 11. The Hon'bie jurisdictional High Court in the case of DIT(E) VS Chembur Gymkhana (2013) 33 taxmann.com 526 (Bom) upheld the order of the Tribunal in granting exemption u/s 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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